David A. Plymyer: Political, Social & Random Commentary

Stop the vendetta, Ms. Mosby.

The vendetta by Baltimore City State’s Attorney Marilyn Mosby against the Baltimore Police Department (BPD) needs to end. I have been a frequent critic of the lax discipline in the BPD and joined many others in calling for a change in the union-dominated “us versus them” culture of the department that too often has contributed to incidents of police misconduct being ignored. [“The tail wags the dog at BPD,” The Baltimore Sun, August 18, 2015.] Indeed, the BPD’s history of failing to police itself helped to set the stage for Mosby’s actions. A vendetta against the officers of the BPD led by the city’s chief prosecutor is not the answer to the problems, however, and will harm Mosby, the BPD, and the city.

In my opinion Mosby’s attitude toward the police department has turned vindictive, a view of Mosby I share with former BPD commissioner Anthony Batts. Mosby came under enormous criticism, including my own, when it became apparent that she based her decision to file criminal charges against six BPD officers allegedly responsible for the death of Freddie Gray on an inadequate investigation and flimsy evidence. [“Baltimore prosecutor’s office should be investigated for Gray-related murder charge,” The Baltimore Sun, June 27, 2016.] I believed that Mosby had her allowed herself to be carried away by the angry emotions that prevailed in the streets of Baltimore after Gray’s death in April 2015. It now appears that, wounded and embarrassed by her defeats in court, she has doubled down and become almost spiteful toward the police.

Any doubt in my mind about Mosby’s motives was dispelled when she stated that she intended to seek legislation conferring on Maryland prosecutors the right to insist upon having a case decided by a jury even if the defendant wanted his or her case to be heard by a judge. The statement came on the heels of her announcement last week that she was dropping criminal charges against the three remaining officers charged in the death of Freddie Gray. Her stated desire to change the law not only slighted Judge Barry Williams, who had acquitted three of the six officers in bench trials, it also sent an unmistakable message to BPD officers: She wants to able to use the well-known skepticism of Baltimore jurors about the credibility of police officers against officers when she prosecutes the officers for misconduct.

In 2008 Ahmet Hissim, an attorney who spent decades prosecuting homicides for the State’s Attorney’s Office, stated publicly that which everyone had known for a long time: Jury trials are a “great risk for prosecutors in Baltimore City because jurors are likely to believe the cops aren’t telling the truth.” [“Requests for jury trials swamping city courts,” The Baltimore Sun, October 10, 2008.] The problem has not gotten any better.

In other words, Mosby wants to be able to exploit the inherent bias of many city jurors against a particular category of individuals, in this case police officers, in order to convict those individuals of crimes. That tactic generally is considered anathema to our system of justice; we expect defendants to be protected from juror bias, not to have it be used against them. Mosby already has shown her willingness to charge police officers with crimes despite a lack of solid evidence against them and now she wants to try them before jurors predisposed to disbelieve them. What does this say about her general feelings toward police officers?

I hasten to add that Mosby has every right to initiate a discussion on whether Maryland should join other states that allow prosecutors to demand that certain cases be tried before a jury. Timing and context are everything, however, and there is no doubt about the reasons behind her proposal. Does anyone believe that, given the situation described by Mr. Hissim, she wants to be able to seek jury trials for defendants other than police officers?

Deliberately or not, Mosby also interjected a racial agenda into the relationship between her office and the BPD. The substance and tone of her rhetoric during the news conference in 2015 during which announced the criminal charges against the six officers gave rise to allegations that the charges were based more on their appeal to the black citizens of the city aggrieved by a history of racism and brutality in the BPD than on the evidence. There was a distinct “get even” quality to her remarks that led both white and black officers to be concerned about her objectivity.

It is every bit as important for a prosecutor to maintain a reputation for fairness and impartiality as it is for a judge; decisions must be based on the law and the facts, not on who the defendants are. It is fine for a prosecutor to be seen as a champion of the poor and the downtrodden but not at the expense of fairness and impartiality to others. There is a line that cannot be crossed. Last week Mosby went to Sandtown-Winchester, where Gray was arrested, to deliver the speech in which she explained her decision to dismiss the charges against the three officers not already acquitted by Judge Williams. Listening again to the substance and tone of her remarks I am not convinced that she even recognizes that the line exists. CNN legal analyst Paul Callan, a former deputy chief of the Homicide Bureau of the Brooklyn District Attorney’s Office, described Mosby’s speech, which included claims that police sabotaged her investigation and tampered with evidence, as “the most inflammatory statement I have ever seen a prosecutor deliver.”

Here is the standard that I apply: There is a serious problem when even good officers have reason to fear a prosecutor. Racism still exists within the BPD, but the solution to it does not lie in tipping the scales of justice in the other direction. Mosby cannot possibly believe that compensating for past injustices by committing new ones is the path forward. Mosby’s vendetta not only will destroy the collaborative spirit between her office and the BPD that is necessary to make the city’s criminal justice work it also will make the needed reforms within the BPD harder to achieve.

Officer Wesley Cagle was convicted yesterday of felony assault for needlessly shooting an unarmed suspect in 2014 because two of his fellow officers reported his actions to internal affairs investigators. The specter of a vindictive State’s Attorney willing to charge officers on flimsy evidence reinforces the “blue wall of silence” in the minds of officers and makes it less likely officers will come forward in the future; officers are more likely to cooperate when they trust that the information that they provide against their fellow officers will be used fairly.

Mosby has wasted an enormous amount of time, effort, and money, and done a lot of other harm. She needs to put a halt to the vendetta before it is too late, if it is not too late already.